EU Referendums and Renegotiations: Re-examined

Maria Kendrick, Visiting Lecturer and PhD Candidate at King’s College London

On 15 September 2015, when writing on Matrix Chambers’ EU Law blog site eutopia law, (available here) the EU Referendum Bill was passing through the legislative process of the House of Commons. Its legal importance extends not only to its amendments but to the apparent revelation of the sovereignty paradox: ‘both politicians and lawyers alike are citing the preservation of Parliamentary sovereignty as the reason for supporting Brexit whilst at the same time backing the use of a referendum because of a lack of legitimacy in the parliamentary system.’In essence, the use of a referendum is being advocated to circumvent the Parliamentary system in order to provide the opportunity to vote to leave the European Union and restore sovereignty to our national Parliament. Since then, events – but notably not motivations – have progressed.

We now have the EU Referendum Act 2015 and following the meeting in Brussels over the 18th and 19th of February 2016 a renegotiated agreement [1]providing a new ‘special status’ for the UK in the EU. One of the items on the agenda to this meeting was the issue of sovereignty, phrased in David Cameron’s letter to Donald Tusk as the UK wanting:

To see an end to the obligation to work towards ‘ever closer union’,

An enhanced role for national parliaments in relation to EU legislative proposals,

A desire to see the EU’s commitment to subsidiarity fully implemented and

Confirmation from the EU institutions that they will fully respect the UK’s Protocols on Justice and Home Affairs.

A further issue, which it is respectfully submitted is also associated with sovereignty, although was not phrased as such, is the role of the Court of Justice of the European Union (CJEU), not only in regard to the legal status of the agreement but also in adjudicating on its contents.

It is notable that the renegotiation agreement clearly states that its terms will only come into effect in the event of a vote by the UK to remain a member of the European Union, therefore it is tempting to state that, in the immediate to short term, renegotiation has achieved nothing to change the status quo. However, a short term view is not necessarily helpful when it comes to assessing a Member State’s status in the EU. In the long term and crucially, should there be a vote to remain a member of the EU, we ought to take the agreement at its word that it will at some point be incorporated into the Treaties. However, with Treaty change near on impossible on or around the 23rd June 2016, in the meantime we will have to depend upon the CJEU to interpret and apply its provisions. It is beyond the scope of this blog post to debate the legal status of the agreement in terms of international law, as there does not appear to be consensus on this point, suffice it for present purposes to assume at least an interpretative role for the Court. Pending Treaty change, the eutopia blog post suggested that the already present enhanced cooperation mechanism in Articles 20 TEU and 326 to 334 TFEU could be used in instances where concessions are made to the other Member States integrating further in areas in which the UK does not wish to participate.

To take one example from the renegotiated agreement, namely the Eurozone area, it is interesting to note how similar the wording of the renegotiated agreement is to the enhanced cooperation Treaty Articles, especially Article 327 TFEU. The renegotiated agreement states that ‘It is acknowledged that Member States not participating in the further deepening of the economic and monetary union will not create obstacles to but facilitate such further deepening while this process will, conversely, respect the rights and competences of the non-participating Member States’. Therefore, from the perspective of the UK, this should include the Court’s judicial protection for its ‘rights and competences’ as a Member State not participating in the further deepening of the economic and monetary union.

Although we can only speculate as to the CJEU’s likely response to the renegotiated agreement itself, we do have judgments on the similar provision contained in Article 327 TFEU. Interestingly from the perspective of the UK, in Spain and Italy v Council C-274/11[2], the Court took the view that even though Spain and Italy did not feel that they could accept the terms of the measure in which they were not participating (which is similar with the UK’s position in relation to the Euro area) their arguments that they felt excluded from further EU legislative development in this area did not convince the Court that their rights and competences had been prejudiced. In fact, it appears from this judgment that the inability to join in, which in this case rested on the acceptability to Spain and Italy of the language requirements of a unified patent protection scheme, even where this amounts to a near impossibility for future inclusion, does not amount to a prejudice to the rights and competences of non-participants. This could be potentially translated into a principle that any measure which a non-participating Member State finds unacceptable does not necessarily on the face of it prejudice its rights and competences. Although this may not bother the UK Government which expresses no intention to join the Euro area, the case is indicative of a restrictive interpretation as to what amounts to prejudice. This may spill over into any interpretation of the renegotiated agreement potentially to the detriment of the non-participant UK.

In the event of a withdrawal agreement one can still see the potential for the terms of a repatriation of legislative sovereignty to be decided in the CJEU. It is therefore inevitable that the extent to which the UK may have taken back control from the EU will be influenced if not decided in Europe, much to the disappointment of the leave campaign.

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[1] European Council meeting (18 and 19 February 2016) – Conclusions EUCO 1/16

[2]Spain and Italy v. Council C-274/11 2013 EUECJ published in the electronic Reports of Cases.